Panchal v R; R v Panchal - [2014] NSWCCA 275

Court of Criminal Appeal

New South Wales

Case Title: Panchal v R; R v Panchal

Medium Neutral Citation: [2014] NSWCCA 275

Hearing Date(s): 13 October 2014

Decision Date: 26 November 2014

Before: Leeming JA; Fullerton J; Bellew J

Decision:
In the appeal against conviction:

1. Refuse leave to appeal in respect of ground 2.

2. Grant leave to appeal in respect of ground 1 and (to the extent necessary) ground 3.

3. Appeal dismissed.

In the Crown appeal:

1. Crown appeal against sentence upheld.

2. The sentences imposed in the District Court on 18 October 2013 are quashed and in lieu thereof the following sentences are imposed:

Count 2: Fixed term of imprisonment for 12 months commencing on 31 May 2013 and expiring 30 May 2014.

Count 3: Fixed term of imprisonment for 6 months commencing on 31 May 2013 and expiring on 30 November 2013;

Count 4: Fixed term of imprisonment for 16 months commencing on 31 July 2013 and expiring on 30 November 2014.

Count 1: Imprisonment for 7 years commencing on 31 May 2014, and expiring on 30 May 2021 comprising a non-parole period of 4 years and 6 months expiring on 30 November 2018 and a balance of term of 2 years and 6 months.

This results in an effective sentence of 8 years with a non-parole period of 5 years and 6 months.

Catchwords: CRIMINAL LAW - Appeal against conviction - trial before judge alone - appellant convicted of sexual assault and indecent assaults - whether verdicts unreasonable - whether error in complainant giving evidence pursuant to Criminal Procedure Act 1986 (NSW), ss 306U and 306ZB - whether error in discounting appellant's prior good character - appeal against conviction dismissed.
CRIMINAL LAW - Crown appeal against sentence - whether error in imposing wholly concurrent sentences - whether sentences unreasonable or unjust - Crown appeal allowed.

Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 61M, 66A, 405I
Crimes (Child Victim Evidence) Amendment Act 1990 (NSW)
Criminal Appeal Act 1912 (NSW), ss 5D, 6
Criminal Procedure Act 1986 (NSW), ss 132, 133, 306M, 306P, 306U, 306ZB, 306ZJ
Evidence (Children) Act 1997 (NSW)

Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
Ingham v R [2014] NSWCCA 123
JT v R [2012] NSWCCA 133
LG v R [2012] NSWCCA 249
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Pearce v R [1998] HCA 57; 194 CLR 610
R v Dousha [2008] NSWCCA 263
R v Slack [2004] NSWCCA 128
SKA v The Queen [2011] HCA 13; 243 CLR 400
Smith v R [2011] NSWCCA 163
W v R [2014] NSWCCA 110

Category: Principal judgment

Parties: Jayeshkumar Dashrathal Panchal (Appellant/Respondent)
Crown (Respondent/Appellant)

Representation

- Counsel: Counsel:
G James QC / P Lange (Appellant/Respondent)
P Ingram SC (Crown)

- Solicitors: Solicitors:
Murphy's Lawyers Inc (Appellant/Respondent)
Solicitor for Public Prosecutions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWCCA 275
Decision Date: 26 November 2014

CaseChat Overview and Summary

The appellant was convicted of sexual assault and indecent assault following a trial before a judge alone in the District Court of New South Wales. The Crown subsequently appealed the sentence, and the appellant appealed the conviction on the grounds of the verdicts being unreasonable, errors in the complainant giving evidence under the Criminal Procedure Act 1986 (NSW), and errors in discounting the appellant's prior good character. The court was required to determine whether the conviction was unreasonable, whether there were any procedural errors in the complainant's evidence, and whether the judge erred in discounting the appellant's prior good character. The court held that the verdicts were not unreasonable, and there were no procedural errors in the complainant's evidence. However, the court found that the trial judge erred in discounting the appellant's prior good character, but this did not affect the safety of the conviction. The appeal against conviction was dismissed.

The court also examined the Crown's appeal against the sentence. The Crown argued that the imposition of wholly concurrent sentences was an error, and that the sentences were unreasonable or unjust. The court held that the trial judge had erred in imposing wholly concurrent sentences, which resulted in the sentences being manifestly inadequate. The Crown's appeal against the sentence was allowed, and the matter was remitted to the District Court for resentencing. The court emphasised the importance of considering the gravity of the offences and the need for general deterrence in sentencing. The court did not make any orders regarding the appellant's conviction, but the matter was remitted to the District Court for resentencing following the allowed Crown appeal.

Orders